1. What exactly is a healthcare directive? And is it part of my estate plan? Is it a legal document and can it stand on its own?
Karen Shirley: A healthcare directive (or advance directive) is a legally recognized, written document that outlines your preferences for medical care, treatment, and end-of-life choices if you become incapacitated and cannot communicate your wishes. It ensures your healthcare wishes are honored by doctors and families. It can be combined with the nomination of a medical power of attorney or be a separate document. It’s part of a complete or wholistic estate plan.
2. Once I have determined and documented my wishes/directive(s), where do I put the document(s)? Do I register this at the nearest hospital?
Karen Shirley: You want to keep the original in a safe place – ideally fire proof and water proof. Copies should be given to your primary doctor and any other doctor or medical provider your regularly see. Additionally, the agents named in your medical power of attorney should be given copies. There is not a single place that you can “register” these documents. The U.S. does not have a national healthcare registry or a universal healthcare system.
3. When is it too late to establish healthcare directives? If my parent is getting older and displaying possible signs of memory loss and dementia, how can I help? What if I fear another family member is pressuring my parent to agree to certain directives with which I don’t agree and which I believe that my parent wouldn’t agree? Could this be considered elder abuse?
Karen Shirley: There is a lot to unpack in this question. First, you can sign a healthcare directive as long as you have testamentary capacity. You need to be able to understand what you are signing and why, who your family is and who you are interacting with (attorney, notary, witnesses, etc.) while signing the document. It is possible in some situations with only some memory loss or mild dementia that an individual can still sign estate documents. It is always a case by case scenario and can be a day to day or moment to moment determination.
Kathi Miracle: A person must be able to cognitively understand legal documents and what they are signing. When a person cognitively declines and is unable to understand what they are signing it is too late. Silver Tsunami Aging Info can complete a thorough assessment including a cognitive assessment to determine the level of cognitive decline if there is any.
Karen Shirley: If you are concerned about an elder individual being taken advantage of financially or abused or neglected (the general requirements for elder abuse), you can always contact Adult Protective Services in your area or in some situations the police. You should have conversations directly and frequently with your parent, as well as others involved with their care, to determine how your parent feels about the situation and what they want to see happen as well as what others involved are concerned about or are seeing happen. Allowing an individual to speak alone with a professional estate attorney can often assist in getting their own wishes flushed out and informing them about their own rights in these situations. A good attorney will not allow a non-client, whether that is a child or a caregiver, to be in all the meetings with a client. They will have at least one conversation with the client by themselves to flush out whether there are any undue influence concerns.
Kathi Miracle: If a family member is ‘pressuring’ an elderly individual a report can be made to Adult Protective Services in the county the elderly person resides.
4. If family member (parent, grandparent or other) is in an assisted living or memory care community, is a healthcare directive a legal order to be followed by caregivers or is it a guideline? If I suspect that the directive is not being upheld by the community or by the subsequent healthcare facility, what should I do? Could this be considered elder abuse?
Karen Shirley: Healthcare directives are legal documents that in the vast majority of circumstances need to be followed. If a healthcare provider believes the directive requires them to do something that is not medically appropriate or violates medical standards that practitioner can opt to not follow the document. If unwanted treatment is set forth in these legal documents, however, the law bars the doctor from performing or giving it. Having a medical power of attorney that authorizes your agent to move you to a facility or find a provider that will honor your wishes is an important part of your estate planning. It is important for family to be vocal and have conversations with facilities if they believe wishes are not being followed without a justifiable reason. Again, adult protective services can be contacted or a healthcare ombudsman brought in to help navigate the situation between the patient and their family and the facility.
Kathy Miracle: Assisted living communities and memory care communities must be licensed in the state of Colorado. Their licensing is through the Colorado Department of Public Health and Environment; Assisted Living Residence program. If a healthcare directive or a legal order is in place these communities have a duty and obligation to uphold and support these documents. The community should have a copy of these documents in the resident’s medical file. These documents should be asked for and provided at the time of the admission into the community. These legal documents are not to be considered a “guideline.’ If the directive is not being upheld a complaint can be made to the following: Colorado Department of Public Health and Environment or Adult Protective Services in the county the community is. If the community is not following the healthcare directive and if this results in harm to or distress for the elderly individual then it may be investigated to determine if it is considered elder abuse.
5. What else on this subject would you like to share or advise?
Kathi Miracle: It is important to remember that completing a healthcare directive or any legal paperwork should be done sooner rather than later. Waiting could present complications, especially if the elderly person is cognitively declining.
There are situations where there is a legal issue over the person with dementia. In this case there needs to be a complete assessment of the elderly individual. This includes assessing their Activities of Daily living (Bathing, Bathroom needs, Dressing, Eating, Mobility, and Transferring ability) and their Instrumental Activities of Daily Living (managing finances, medication management, meal preparation, shopping, housekeeping, transportation, and communication). It is also necessary to assess the person’s environment, safety concerns, and if possible complete a cognitive assessment. Legal issues with aging individuals and aging services can get very sticky, so hiring an expert to step in to provide clarification and an unbiased perspective is important.
Karen H. Shirley, Esq. Managing Attorney – Holmes Shirley Law | 720-248-7621 | Karen@HolmesShirleyLaw.com | 1189 South Perry Street, Suite 220, Castle Rock, CO 80104 | www.HolmesShirleyLaw.com
Kathi Miracle, Certified Dementia Practitioner and a Certified Brain Trainer, Founder of Silver Tsunami | 720-773-1023 | Contact@mysilvertsunami.com
